Environmental governance arrangements: report

3. Whether the provisions of the Continuity Act have ensured that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU?

This chapter discusses the first of the three matters specified in section 41. We will first describe the implementation of the measures in the Continuity Act that provide for a system of environmental governance overseen by ESS. We shall then briefly discuss some of the early cases that have been considered under the new system. Finally, we shall present some conclusions on the effectiveness and appropriateness of the governance arrangements. In drawing these conclusions, we have to recognise that these are still quite early days in the operation of ESS and the system of environmental governance.

3.1 Environmental Standards Scotland: Establishment and functions

After a period of non-statutory operation, ESS was formally established on 1 October 2021 under the provisions of the Continuity Act, and has the status of a Non-Ministerial Office. ESS is independent of Scottish Ministers and has the role to ensure environmental laws and standards are adhered to in Scotland, replacing the European Union's scrutiny and enforcement role in a domestic body. ESS is made up of members, with a chairing member, appointed by Ministers subject to approval by the Parliament. The members of ESS have arranged themselves into a Board to run the organisation and to discharge its functions. ESS has a permanent staff, who are civil servants, led by a Chief Executive.

ESS's remit covers a broad definition of environmental law, including all aspects of environmental protection and harm, particularly in relation to human beings and their enjoyment of the environment. ESS monitors and can take action to improve the effectiveness of environmental law and its implementation. The Continuity Act gives ESS enforcement powers through a system of compliance notices against public authorities, including the Scottish Government if they are not complying with environmental law in the exercise of their functions. Other powers include issuing information notice and presenting to the Parliament improvement reports into the effectiveness of environmental law and its delivery, which creates an obligation for Ministers to respond.

ESS also has the ability to report a public authority to the Court of Session if they fail to comply with a compliance notice. The Court of Session then may make such an order for enforcement as it considers appropriate, or deal with the matter as if it were a contempt of Court. ESS also has the power to apply for judicial review or intervene in civil proceedings if a public authority's conduct a serious failure to comply with environmental law, and it is necessary to make the application to prevent, or mitigate, serious environmental harm.

ESS published its strategic plan^[15] in December 2022 after laying it in draft in the Parliament for approval under the terms of section 22 and schedule 2. The strategic plan includes a more detailed description of the powers and functions of ESS. The strategic plan sets out how ESS will work to deliver their roles and responsibilities through each of their five strategic outcomes, and describes its approach to investigations.

3.2 Investigations

ESS has carried out a number of investigations since its formation, with work commencing when the organisation was operating on a non-statutory basis from January 2021, and continuing once formally established. ESS sets out information on all of its ongoing and completed casework on its website^[16]. In its strategy, ESS sets out the factors that it considers when deciding which matters to investigate, including the representations that are made to ESS by members of the public, community organisations and environmental NGOs. The strategy also sets out ESS's approach to conducting investigations.

The casework completed to date shows that ESS has taken different approaches to resolving issues in different cases. In some cases, ESS has been able to reach informal resolution with the public authority on the issue under investigation. Other cases have been paused following initial investigation, with ongoing monitoring of the issue. There are positive indications from these outcomes that the flexibility built into the provisions, and the encouragement for ESS and public authorities to cooperate to resolve issues informally, is working effectively.

There is one instance to date – the investigation into air quality – where the provisions for an improvement report have been worked through all stages, with the Parliament approving the Scottish Government's Improvement Plan in response to ESS's tabled Improvement Report. The issue under investigation was a continuation of concerns that had been raised before leaving the EU, leading to a March 2021 European Court of Justice judgment on statutory air quality limit values in respect of nitrogen dioxide.

The report of ESS's investigation included six recommendations for improvement, which ESS presented to the Parliament as a formal Improvement Report under the provisions of sections 26-29 of the Continuity Act. As a result, the Scottish Government prepared an Improvement Plan under the provisions of section 30 of the Act, that they presented to the Parliament in March 2023. This Plan responded to ESS's recommendations. The Net Zero Energy and Transport Committee of the Parliament led the consideration of the issues, and took evidence on the improvement report and plan during April 2023^[17].

The air quality investigation demonstrates the provisions working effectively in giving ESS a route to the Parliament to raise concerns and make representations in an Improvement Report. Ministers are obliged to respond to the Improvement Report, and responded positively to the recommendations, seeking ways to improve the delivery of their air quality strategy.

3.3 Effectiveness of provisions

It is still early to judge the effectiveness of the provisions in the Continuity Act for environmental governance. ESS has been successfully established, has developed its strategy and had it approved by the Parliament, and has carried out investigations under the provisions. Some of the powers and functions have been tested in practice, including the presentation of recommendations, seeking ways to improve the delivery of the Scottish Government's air quality strategy. However, at this stage some of the provisions remain untested. This, however, can be seen as a positive result of the objective built into the provisions for matters to be settled between ESS and public authorities without resort to formal powers wherever possible. It may also be a sign of a generally high level of compliance with environmental law by public authorities in Scotland.

ESS has developed its own corporate values and principles to guide its work, which were set out in its strategy as approved by the Parliament. As well as its work in promoting compliance and effectiveness, including through carrying out investigations, ESS has developed plans for its work to be informed by its own monitoring and analysis function. As a small body, ESS can never expect to develop and hold expertise on the full scope of environmental law, and is developing its knowledge base to assist in its own assessment of priorities and to carry out overall monitoring of environmental performance. The early exchange of information and knowledge will remain an important part of individual investigations. ESS has also developed its plans to increase engagement with public authorities, and with other stakeholders. ESS has taken a constructive approach to receiving representations, providing advice and support to those who need help in setting out their concerns, and helping people to identify the appropriate route to redirect concerns that are not within ESS's own remit.

As a still relatively new body, it is not surprising that there are still some gaps in awareness of ESS in public authorities and in the wider community. As time passes, more people working in public authorities will have had contact with ESS, and will be aware of its role and purpose. ESS's work with stakeholder groups has helped to raise awareness of their role. We believe that, where there is awareness of ESS, there is a broad appreciation of their independence and integrity, and a view that they have started their work in a positive and effective manner.

3.4 Continuation of effective governance

The arrangements put in place by the Continuity Act are designed for a domestic setting, and therefore have differences from the system of governance in the EU. In operation, the main differences seen in the operation of the system of environmental governance are:

• The approach is more localised and accessible to stakeholders,
• There is less focus on the mechanics of transposing EU law into domestic law,
• The involvement of the Parliament in receiving Improvement Reports and Plans, and forming conclusions about the effectiveness of the response from Ministers,
• Cases generally move through their stages more rapidly.

However, there are key aspects of the arrangements provide for continuation of effective environmental governance:

• ESS has discretion to determine and prioritise matters for investigation,
• ESS can obtain necessary information from public authorities' to carry out investigations,
• ESS is able to resolve matters where appropriate without recourse to formal powers,
• Public authorities are responding positively, cooperating as required by the Act in sharing information and knowledge for investigations, and seeking to resolve concerns.

3.5 The exclusion of individual cases from ESS's remit

The exclusion of individual cases from ESS's remit was discussed at length during the passage of the Continuity Act, and is still a concern for some stakeholders. The Scottish Government remains convinced that this exclusion is appropriate, and that it should remain the case that it is not ESS's role to act as a point of appeal for individual planning and consenting decisions. ESS's role is to ensure that public authorities comply with environmental law in the exercise of their functions, not to review their judgement on individual decisions. ESS can also consider the effectiveness of the environmental law and policy that sets the framework for individual regulatory decisions.

We do, however, acknowledge that the exclusion of individual cases from ESS's remit can add some friction to the system, alongside the provision that ESS should only intervene once other processes are complete. These provisions could, potentially, lead to an individual who has concerns, that they think should be considered by ESS, deciding that they first have to take a case or a number of cases to a regulator for consideration to demonstrate that all other routes have been tried. There are concerns that this could slow consideration of issues, although regulators are generally subject to statutory time limits for considering any representations.

Some friction is inevitable in the system, in order that ESS does not duplicate existing processes. However, we believe that this friction can be minimised by good communication between ESS and regulators, consistent with what is appropriate for their separate roles. In addition, there may be opportunities for those raising concerns to engage with the regulators and ESS about the nature of their concerns, which may help to identify at an earlier point if there is an issue for ESS to investigate within their remit.

3.5 Conclusion

The Scottish Government is content that the provisions of the continuity Act establishing ESS and providing for its powers and functions have ensured that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU. As discussed in the previous chapter, there are many ways in which leaving the EU affected our environmental law and the effectiveness of implementation. The provisions establishing ESS have effectively closed the major gap in governance from the loss of the infraction and effectiveness monitoring roles of the EU institutions. The replacement cannot be an identical arrangement, in a domestic setting, and relies on the pressure of taking policy effectiveness issues to the Parliament. There is a growing awareness in public authorities of the function and role of ESS and, as is appropriate in a system of environmental governance, there is an incentive to consider the possibility of investigation.

ESS is an independent body, and it is crucial that they are independent from Ministers in setting their strategy and priorities. The provisions rightly place a duty to co-operate on public authorities, and provide powers for ESS to gather the information that they need to perform their functions. We have some observations, emerging from existing good practice, about how the provisions can work most effectively:

• Good, early informal information exchange between ESS investigatory staff and officials can ensure effective focus for investigations, saving unnecessary effort on for both ESS and the public authority.
• The provisions allow for early and informal resolution of investigations which can be an effective means of achieving environmental gains.
• The continued focus of the Parliament is critical to the effectiveness of the arrangements.
• There may be potential for regulatory bodies and ESS to coordinate more effectively when issues relating to individual decisions are brought forward for attention, allowing the identification of any systematic issues for investigation without generating unnecessary appeals and complaints cases. There may also be potential for people bringing forward concerns to share more information about the nature of their concerns.